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no title, but that the plaintiff could not rely upon that fact. Held, that there was no error in the charge as given, nor in the failure to charge as requested. Pearson v. Simmons, 98 N. C. 281; 3 S. E. Rep. 503 (1887).

In ejectment in the courts of the United States the legal title must prevail, as against a mere equity; and a party claiming under a Mexican grant of an imperfect or equitable title, can not maintain ejectment against another, claiming under the same grant, by adverse derivative title, who has presented his claim and had it confirmed, whether he acted fraudulently or otherwise. Bouldin v. Phelps, 30 Fed. Rep. 547 (1887).

No recovery can be had upon the demise of a person who had conveyed away his whole title before the action was brought. Hobby v. Bunch, 83 Ga. 1; 10 S. E. Rep. 113 (1839).

The owner of the fee in lands, subject to the right of the public to use as a highway, may maintain ejectment in case of ouster. Westlake v. Koch, 55 Hun (N. Y.), 611; 8 N. Y. Sup. 665 (1890).

Where plaintiff in ejectment leased the premises before the action was brought, and, when defendants were found in possession, authorized the lessee to sue in plaintiff's name, it will be presumed that the lease was abandoned by mutual consent, and it can not be urged as a defense that plaintiff was not entitled to possession. Brant v. Phillippi, 82 Cal. 640; 23 Pac. Rep. 122 (1889).

In an action by the children of R.'s first wife to recover from the children of his second wife certain land which they allege R. held as tenant by the curtesy in the right of his first wife, it appeared that R. entered on the land under a title bond from said wife's father, who had no title, purchased the elder grant, and took a conveyance to himself; that the land, when he entered, was worth little, and that he paid as much or more than that little to acquire title; that R. conveyed the land to defendants as an advancement, having already made advancements to plaintiffs: Held, that a judgment for defendants was proper. Woolfolk v. Richardson (Ky.), 10 S. W. Rep. 320: Am. Dig. 1891, 1174.

Defendant in ejectment bought a lease of the premises from plaintiff's tenant, but, after entering, repudiated the tenancy. Plaintiff had prior possession under a deed from one who had located a mining claim including the premises. Defendant not setting up any different title, held, that plaintiff's title must prevail over defendant's possession, whether or not the proceedings for the location of the mining claim were valid. Deemer v. Falkenburg, 4 N. M. 57; 12 Pac. Rep. 717 (1887).

Defendant contracted to convey land to plaintiff on payment of $3,000 in six months. Before the time expired plaintiff contracted to sell the land to S. for $8,000, whereon all the parties entered into a tripartite agreement, defendant changing the time of plaintiff's payments to him to suit the terms of plaintiff's agreement with S., and agreeing to make title to S. when the latter should pay the full amount of $8,000, of which defendant was to have $3,000, and plaintiff the rest. S. paid defendant $2,000, but failed to make the other payments, and defendant brought ejectment against him without making plaintiff a party, or giving him notice, obtained an award of the balance due under defendant's original contract with plaintiff, and possession of the land: Held, that the award did not extinguish plaintiff's equi



table title, and that he could maintain ejectment against defendant. Mc Cullough v. Staver (Pa.), 13 Atl. Rep. 440 (1888).


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Plaintiff claimed the possession of certain lots and blocks, describing them by their numbers. The addition was surveyed and platted in 1871; after which the lots described in the petition were conveyed to plaintiff. The plat is described by the record as being south and west of the original town of P. "on southeast of section 9, town seven (7), range three (3) east.' There is no plat of the original town of P. The certificate of the surveyor described the plat as "part N. E. S. E. Sec. 9, T. 7, R. 3 east, W. C. 50 links S.; N. E. corner of S. E., walnut stake two inches square, one foot long, var. 10° 30' east." In 1877 the proprietor conveyed to defendant the land on which the survey had been made, describing it by the government survey. At that time the land was used as a farm, and has so been used until this action: Held, that the lots being incapable of identification, plaintiff could not recover. Lane v. Abbott, 23 Neb. 489; 37 N. W. Rep. 82.

Land was conveyed to a corporation by S., the habendum clause limiting the term to fifty years, or so long as the charter of said company might continue. By an amendment to its charter the corporation acquired the capacity of possible perpetual existence: Held, that there was left in S. only a possibility of reverter, incapable of alienation, and that one to whom S. subsequently conveyed the land, together with the reversion therein, did not acquire an estate upon which ejectment could be maintained. Davis v. Memphis & C. R. Co., 87 Ala. 633; 6 So. Rep. 140 (1889).

Where plaintiff in ejectment claims under a conveyance executed when Rev. St. Wis. 1858, c. 86, §7, was in force, declaring every grant to be void if at the time of its delivery the land is in the actual possession of another claiming under title adverse to that of the grantor, he can not recover when the land in controversy was in the actual possession of another at the time he received his deed. Wentworth v. Abbetts (Wis.), 46 N. W. Rep. 1044; Am. Dig. 1891, 1385.

Proof of a deed of conveyance of land from the trustees of the internal improvement fund is prima facie evidence of title in the grantee. Bell v. Kendrick (Fla.), 6 So. Rep. 868 (1890).

Land deeded to William H. Brown in January, 1849, having been conveyed by William B. Brown in April following, identity can not be presumed in favor of a plaintiff in ejectment; and, if no other evidence of identity is offered, a verdict for the defendant is properly directed. Ambs v. Chicago, St. P. M. & O. Ry. Co., 44 Minn. 266; 46 N. W. 321 (1890).

One suing in his individual capacity is entitled to recover on a patent issued to him in a representative capacity. Burling v. Thompkins, 77 Cal. 257; 19 Pac. Rep. 429 (1888).

The plaintiff in ejectment must show a complete title, and identify the land in accordance therewith; and where the court instructed the jury that in the absence of any proof of title to the land in controversy, on the part of the defendant, he had no right to complain of any adjustment between the lessor of the plaintiff and the person through whom the lessor of the plaintiff claimed as to the particular land the vendee of the lessor designed conveying, and that the land he designed conveying was in fact that which was actually conveyed, it was held crroneous. McRaven v. McGuire, 9 S. & M. (Miss.) 34.

The plaintiff, in deducing his title, must show a grant of the land, and a regular title from the grantee, or seizin of the land, for which the ejectment was brought, and a dying seized of the person under whom the lessor of the plaintiff derived his title, and a regular title from the person dying seized, or twenty years' uninterrupted and exclusive possession of the land. Plumer v. Lane, 4 Har. & M'H. (Md.) 72.

Where the plaintiff had shown a title, which would have entitled him to a verdict unless that of the defendant were better, it was held error in the court below to instruct the jury that they were not called upon to decide the validity of the defendant's title, but that of the plaintiff alone. Jack v. Dougherty. 3 Watts (Penn.), 151.

Since the rule is universal, that a plaintiff in ejectment must show the right to possession to be in himself positively, and it is immaterial as to his right to recover, whether it be out of the tenant or not, if it be not in himself, it follows that a tenant is always at liberty to prove the title out of the plaintiff, although he does not prove it to exist in himself. Love v. Simm's Lessee, 9 Wheat. (U. S.) 515.

Plaintiff's title under adverse possession.

Plaintiff in ejectment can not recover without showing a paper title in the person who executed the first deed in his claim of title, or possession by him or by some of the mesne grantees under whom plaintiff claims. Adams v. Board County School Com'rs (Md.), 20 Atl. Rep. 954 (1890).

Plaintiff must prove either a paper title or a title by adverse possession; and prayers based on the principles of acquiescence and estoppel recognized by courts of equity, in relation to boundary lines, are properly refused. Winter v. White, 70 Md. 305; 17 Atl. Rep. 84 (1889).

In ejectment, evidence that plaintiff derives title from a grantor whose ancestor had acquired the fee by adverse possession establishes the ownership of the fee in plaintiff. McWhorter v. Hetzel (Ind.), 24 N. E. Rep. 743. Where the location of a boundary between the lands of the parties was the real question raised, no evidence being introduced by defendant, plaintiffs showing possession and claim of title long enough to vest in them a perfect title, were entitled to recover, and the case should have gone to the jury. Jones' Heirs v. Spradling (Ky.), 7 S. W. Rep. 31 (1888).

In ejectment by one claiming by prior possession under color of title, where the evidence fails to show continuous possession to the time when dispossessed by defendant, plaintiff can not recover. Sabariego v. Maverick, 124 U. S. 261; 8 S. Ct. Rep. 461 (1888).

An open and exclusive possession and improvement of land for any considerable time, claiming title thereto, is such presumptive evidence of title in the possessor, that an attaching creditor of a third person, in whom is the record evidence of title, will be held to be affected with notice of a deed from his debtor to the party in possession, though such deed might have been recently given, in execution of a contract of purchase under which the possession was taken and not recorded. Publee v. Mead, 2 Vt. 514.

The occupation of pine land, by annually making turpentine on it, is such an actual possession as will oust a constructive possession by one claiming merely under a superior paper title. Byrum v. Carter, 4 Ired. (N. C.) 310. An entry upon, and a continued occupation of land, with the use of a



way as appurtenant thereto, under a warranty deed which purports to convey the land, and the right of way as appurtenant to it, are some evidence of title to the land, and of a right to use the way, against one who shows no right to interfere with this use. Shapine v. Shaw, 150 Mass. 252; 22 N. E. Rep. 894 (1890).

A plaintiff who bases his claim to property, or its possession, upon a legal title, can not recover on the strength of an equitable title. Tarpey v. Desert Salt Co. (Utah), 14 Pac. Rep. 338 (1887).

A title acquired by ten years' adverse possession under color of title descends to the heirs of the claimant, and they may enforce such title by ejectment. Hall v. Caperton, 87 Ala. 285; 6 So. Rep. 388 (1889).

In ejectment to determine the title to part of a wharf projećting into a navigable lake, it appeared that defendant had driven a line of piles between twenty and thirty years before the commencement of suit, which would exclude from plaintiff's occupancy all the disputed territory, and which was done to fix boundaries: Held, that a finding for plaintiff was error. Jones v. Lee, 77 Mich. 35; 43 N. W. Rep. 855 (1889).

An adverse possession will be negatived when the party claiming title has never, in contemplation of law, been out of possession. This point is decided in Barr v. Gratz's Heirs, 4 Wheat. (U. S.) 223; Mather v. The Ministers, etc., 4 Serg. & R. (Penn.) 509; Cluggage v. Duncan's Lessee, 1 Ib. 118; Proprietors of Kennebec Purchase v. Springer, 4 Mass. 418; see also Gay v. Moffit, 2 Bibb (Ky.), 508; Green v. Liter, 8 Cranch (U. S.), 229; Commonwealth v. M'Gowan, 4 Bibb (Ky.), 62; Chiles v. Calk, 4 Ibid. 554; Harlock v. Jackson, 1 Const. Rep. (S. C.) 135; Bryant v. Allen, 2 Hayw. (N. C.) 74; Symonds v. True Blood, Ibid. 235; Hord v. Bodley, 5 Littell (Ky.), 88; Smith v. Morrow, 5 Littell (Ky.), 210; Taylor v. Shield's Heirs, 5 Littell (Ky.), 296; Daniel v. Ellis, 1 Marsh. (Ky.) 60; Codman v. Winslow, 10 Mass. 151; Commonwealth v. Dudley, 10 Mass. 408; Wells v. Prince, 4 Mass. 64.

He who makes title to a tract of land, and is in possession of part, is in possession of the whole, according to the true limits and real position of the land. Ridgley's Lessee v. Ogle, 4 Har. & M'H. (Md.) 129.

Possession of a part is a possession of all the land covered by a party's title. Anderson ads. Darboy, 1 Nott & M'Cord (S. C.) 396; Brandon ads. Grimke, Ibid. 357.

Cutting a road upon land, with a view to get timber, or to fell trees in order to clear and cultivate land, constitutes, in connection with a written claim of title, a constructive possession to the whole tract described. Spear v. Ralph, 14 Vt. 400.

Where one enters into land having title, his seizin is not bounded by his actual possession, but is co-extensive with his title. But where he enters without title, his seizin is confined to his possession by metes and bounds. Jackson v. Porter, 1 Paine (U. S.), 458; Cluggage v. Lessee of Duncan, 1 Serg. & R. (Penn.) 111; Davidson's Lessee v. Beatty, 3 Harr. & M'H. (Md.) 621.

A cottage standing in the corner of a meadow (belonging to the lord of the manor), but separated from it and from a high-road by a hedge, had been occupied for above twenty years without any payment of rent. The lord then demanded possession, which was reluctantly given and the occupier was told that if he was allowed to resume possession it would only be during pleasure. He did resume and keep possession for fifteen years more, and

never paid any rent; it was held, that the possession was not necessarily adverse, but might be presumed to have commenced by permission of the lord. Doe v. Clark, 8 Barn. & C. 717.

The general rule is, that after a sale of land, and before a conveyance of a legal title, the vendor is the trustee of the vendee, and the act of limitations will have no operation. But where the vendor disavows the trust, and after having delivered possession to the vendee, makes a lease to a third person in opposition to the title of the vendee, and the lessee enters and holds possession, the jury may presume a disseizin, and if the vendee suffers twenty-one years to elapse without prosecuting his claim, it will be barred by the act of limitations. Pipher v. Lodge, 4 Serg. & R. (Pa.) 310.

Where two non-residents held in common an unsettled tract of land, which, without their knowledge, was sold for non-payment of the State taxes, and they afterward made partition by mutual deeds of release and quit-claim, in common form, after vach one of them, within the time of redemption, paid the tax to the purchaser at the sheriff's sale, from whom he took a deed of release and quit-claim to himself alone for the whole tract, it was held that this payment and deed inured to the benefit of them both; that the party paying, had his remedy by action against the other for contribution; and that he who had not paid, might still maintain a writ of entry against the other, for his part of the land. Williams v. Gray, 3 Greenl. (Me.) 207.

A possession of land, taken under an executory contract for the purchase thereof, is in no sense adverse to the person with whom the contract is made. Jackson v. Johnson, 5 Cow. (N. Y.) 74; Jackson v. Camp, 1 Cow. (N. Y.) 610; Botts v. Shield's Heirs, 3 Litt. (Ky.)34; Morris v. Thomas, 5. Binn. (Penn.) 77; The Proprietors of Township Number Six v. M'Farland, 12 Mass. 325: Higgin. bottom v. Fishback, 1 Marsh. (Ky.) 325, 506; Wilkinson, etc. v. Nichols, Mon. (Ky.) 36; Richardson v. Broughton, 2 Nott & M'C. (S. C.) 417; Jackson v. Bard, 4 Johns. (N. Y.) 230; Bowker v. Walker, 1 Vt. 18.

Mixed possession.

Where two persons are in possession, the one by right and the other by wrong, it is the possession of him who is in by right. Chase, Ch. J., in Hall v. Gitting's Lessee, and Gitting's Lessee v. Hall, 2 Harr. & J. (Md.) 112; Mather v. The Ministers of Trinity Church et al., 3 Serg. & R. (Penn.) & 9; Davison's Lessee v. Beatty, 3 Harr. & M'H. (Md.) 621.

There would appear to be no clearer principle of reason and of justice, than this, that if the rightful owner is in the actual occupancy of a part of his tract by himself, or tenant, he is in the constructive and legal possession and seizin of the whole, unless he is disseized by actual occupation and dispossession. If this were not the law, the possessor by wrong would be more favored than the rightful possessor. Here are two, each in actual possession and occupation of part of a surveyed tract-the owner and an intruder. Who, then, is in possession of the part not occupied by inclosure? either the man who has no right but by disseizin of a part, or he who is in the actual occupancy of a part, and the rightful owner of the whole. In this kind of mixed, constructive possession, the legal seizin is according to the title. Title draws possession to the owner. It remains until he is dispossessed, and then no further than actual dispossession by a trespasser, who can not acquire a constructive possession, which always remains with the title. Hall v. Powell, 4 Serg. & R. (Penn.) 465; Den v. Stephens, 1 Dev.& B. (N. C.) 5.

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